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European Union (Withdrawal) Bill 2017 passes second reading amid concerns over delegated powers

Date:13 SEP 2017
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After two days of extensive debate, the European Union (Withdrawal) Bill 2017 has passed its second reading in the House of Commons by 326 votes to 290. The Bill intends to repeal the European Communities Act 1972, ending the supremacy of EU law in the UK, and ensuring the UK’s withdrawal from the EU is as orderly as possible by converting EU law applicable to the UK on the day of Brexit into domestic law. Critics have raised concerns about the Bill, however, especially regarding the proposed use of delegated legislative powers, the approach to devolution, and questions regarding the continued application of EU rights and legal principles in the UK. Lawyers and experts recognise the validity of these criticisms, but suggest that following the Committee and the House of Lords stages, the Bill is likely to look considerably different.
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Amendments, additions and arguments

More than 100 MPs spoke during the two-day second reading debate, raising concerns and suggesting future amendments and additions. As perhaps expected, no Conservative MPs voted against the second reading stage. The vast majority of Labour, Lib Dem and SNP MPs did vote against the Bill.

A reasoned amendment to the motion for second reading was moved by Shadow Brexit Secretary, Sir Kier Starmer, declining to give the second reading on a number of grounds. MPs voted against the amendment by 318 votes to 296.

The House of Commons debate concluded with MPs voting on a number of motions, including:

  • the programme motion, setting the timetable proceedings in Committee, on consideration and at third reading―approved by 318 votes to 301; and
  • the ways and means resolution and the money resolution for the Bill―approved without division.

Devolution or the reservation of repatriated legislative powers

There have been questions raised regarding the extent of devolution/reservation of legislative powers repatriated to the UK from the EU as part of the UK’s withdrawal. Adam Cygan, professor at the University of Leicester, notes the government’s inclusion of devolution in the White Paper on the European Union (Withdrawal) Bill published in March 2017:
‘In presenting the White Paper, the Secretary of State for Exiting the European Union, David Davis, said in Parliament that the European Union (Withdrawal) Bill would allow UK Parliament and Welsh, Scottish and Northern Ireland administrations to scrap, amend and improve laws.’

The devolved administrations are currently responsible for implementing the common policy frameworks set by the EU. This could change with the passing of the European Union (Withdrawal) Bill 2017. Cygan says:
‘At para 4.2, the White Paper states that “when the UK leaves the EU, the powers which the EU currently exercises in relation to the common frameworks will return to the UK, allowing these rules to be set here in the UK by democratically-elected representatives”.’

Protection of individuals’ rights

The European Union (Withdrawal) Bill proposes to exclude the Charter of Fundamental Rights (CFR) from the scope of retained EU derived law to be adopted into UK law. According to Samar Shams, practice development lawyer at Lewis Silkin LLP, the CFR provides ‘more effective remedies, such as overriding contrary provisions of UK legislation, than the European Convention on Human Rights (ECHR), which the government does plan to retain, for now'.

Shams says the CFR is also more accessible: ‘An individual need only have sufficient interest to bring a challenge under the CFR whereas the ECHR requires that the individual be a victim’.

Proposed legislative powers – ‘the most controversial feature’

The government is aiming to ensure the UK statute book is prepared for exit day. The European Union (Withdrawal) Bill plans to create delegated powers to enable Ministers to ‘correct the statute book where necessary’ using secondary legislation. Critics have suggested, however, that these legislative changes might avoid proper parliamentary scrutiny, which Cygan argues is one of the most controversial features of the Bill:
‘The government plans to enact these “corrections” to the statute book using what are referred to as Henry VIII powers, after the Statute of Proclamations 1539 which gave him the power to legislate by proclamation. The criticism of this from the perspective of parliamentary democracy is that it will not involve the usual parliamentary scrutiny process leading to potential criticism that the government is ruling by decree and without sufficient reference to Parliament.’

There are some limits to the Henry VIII powers, as expressed by Annabel Borg, senior associate at Eversheds Sutherland:
‘The Bill provides a non-exhaustive list of the potential deficiencies including provisions that have no practical application after the UK has left the EU and EU references which are no longer appropriate. Clause 7 of the EU (Withdrawal) Bill 2017 does, however, include some restrictions—the Henry VIII powers cannot, for example, be used to impose or increase tax, make retrospective provision, make a new criminal offence, or amend or revoke the Human Rights Act 1998.’

Ministers have attempted to reassure critics by claiming the measures will be time limited and not used to make policy changes. The government claims it will require between 800 to 1000 statutory instruments to ensure UK law functions properly post-Brexit.

Applying EU legal principles post-Brexit

Domestic UK courts will continue to give primacy to EU law until the EU withdrawal date. Cygan explains:
‘All preliminary reference requests under Art 267 of the Treaty of the Functioning of the European Union sent to the Court of Justice from the UK will continue to be heard and the Court of Justice will continue to provide preliminary rulings until withdrawal. UK courts should also continue to send cases for preliminary rulings when necessary to ensure that EU obligations within the UK are correctly applied. It is important to note that case law of the Court of Justice is also a key part of EU law and interprets the application of many directives.’

The Bill provides that pre-Brexit EU law cases will continue to be binding on the UK courts and will have the same status as decisions in the UK Supreme Court. Cygan explains, however, that after Brexit:
‘Parliament will be able to reverse those decisions. When it comes to post-Brexit case law, the European Union (Withdrawal) Bill 2017 will “not require domestic courts to consider the Court of Justice’s jurisprudence”, but it is likely to have “persuasive” effect.’

Samar Shams says domestic courts can refer to EU judgments in certain instances:
‘A UK court can refer to a post-exit EU judgment “if it considers it appropriate to do so”. Although the phrase is ambiguous, UK courts can refer to foreign jurisdiction in this way and objections might actually stem from a panic about the implications of UK judges relying Court of Justice judgments in the current political climate.’

The Committee stage and the House of Lords—further changes to come

Cygan explains:
‘Overall, it is important to bear in mind that this is only the second reading of the European Union (Withdrawal) Bill 2017 and that as the Bill passes through the Committee stage in the House of Commons it is likely to be amended. In addition, the Bill will also be considered by the House of Lords which is also likely to seek amendments to the Bill and thus the final version which receives Royal Assent is likely to look significantly different from the Bill that received second reading approval.’
Andrew Eaton, associate at Hogan Lovells, suggests the Conservatives might face a difficult time in the weeks and months ahead:
‘It will not be an easy ride for the government—expect more political drama to follow. However, the importance of the Bill for ensuring a successful Brexit cannot be understated. A positive outcome will only be achieved if MPs grapple seriously with the Bill’s many intricate and potentially long-lasting implications for the future of the UK. It is hoped that political leaders face up to the inevitable compromises the Bill presents, rather than allow the passage of a Bill that leaves them unresolved and therefore ultimately for the courts to determine.’

Reactions from inside the Commons

Prime Minister Theresa May said:
‘Parliament took a historic decision to back the will of the British people and vote for a Bill which gives certainty and clarity ahead of our withdrawal from the European Union. This decision means we can move on with negotiations with solid foundations and we continue to encourage MPs from all parts of the UK to work together in support of this vital piece of legislation.’

Shadow Brexit Secretary, Sir Keir Starmer, was more critical:
‘The Bill fails to protect and reassert the principle of parliamentary sovereignty by handing sweeping powers to government Ministers allowing them to bypass Parliament on key decisions, without any meaningful or guaranteed parliamentary scrutiny; fails to include a presumption of devolution which would allow for the effective transfer of devolved competencies coming back from the EU to the devolved administrations and makes unnecessary and unjustified alterations to the devolution settlements.’